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Finklea v. Commissioner of Social Security

United States District Court, N.D. Ohio, Eastern Division

June 16, 2017

SHEDRIC FINKLEA, Plaintiff,
v.
COMMISSIONER OF SOCIAL SECURITY, Defendant.

          MEMORANDUM OPINION & ORDER

          KATHLEEN B. BURKE, UNITED STATES MAGISTRATE JUDGE

         Plaintiff Shedric Finklea (“Plaintiff” or “Finklea”) seeks judicial review of the partially favorable final decision of Defendant Commissioner of Social Security (“Defendant” or “Commissioner”) finding Finklea disabled from November 14, 2011, through June 1, 2013, but finding that Finklea was not disabled from the alleged onset date of January 14, 2011, until November 14, 2011, and that Finklea's disability ended on June 2, 2013. Doc. 1, Tr. 13. At issue in this case is the Administrative Law Judge's determination regarding the January 14, 2011, through November 14, 2011, time period and his determination regarding the time period after June 1, 2013.

         This Court has jurisdiction pursuant to 42 U.S.C. § 405(g). This case is before the undersigned Magistrate Judge pursuant to the consent of the parties. Doc. 11. For the reasons set forth below, the Court AFFIRMS the Commissioner's decision.

         I. Procedural History

         Finklea protectively filed applications for Disability Insurance Benefits (“DIB”) and Supplemental Security Income (“SSI”) on May 2, 2013.[1] Tr. 156, 173, 348-354, 366-373, 410. He alleged a disability onset date of January 14, 2011. Tr. 348, 366, 410. Finklea alleged disability due to back problems, bronchitis, asthma, problems with left hip, depression, high blood pressure, and sciatic nerve. Tr. 209, 219, 415. Finklea's applications were denied initially (Tr. 209-215) and upon reconsideration by the state agency (Tr. 219-225). Thereafter, he requested an administrative hearing. Tr. 226-228. On October 17, 2012, Administrative Law Judge Thomas M. Randazzo (“ALJ Randazzo”) conducted an administrative hearing (Tr. 50-105) and, on January 4, 2013, ALJ Randazzo issued an unfavorable disability decision (Tr. 174-197).

         Finklea requested review of ALJ Randazzo's decision by the Appeals Council. Tr. 262. Initially, on August 6, 2014, the Appeals Council indicated it intended to adopt ALJ Randazzo's decision (Tr. 199, 273-276) but subsequently, on September 19, 2014, the Appeals Council decided that it was necessary to remand the case for further proceedings before an Administrative Law Judge for consideration of Finklea's November 2012 hip replacement surgery in determining whether Finklea met a listing and in assessing his credibility and RFC; for consideration of Finklea's obesity; and for consideration of his disability claim under both Title II and Title XVI. Tr. 12, 199-200.

         Pursuant to the Appeals Council's remand order, on April 9, 2015, Administrative Law Judge Peter Beekman (“ALJ”) conducted an administrative hearing. Tr. 106-132. Thereafter, on June 8, 2015, the ALJ issued a partially favorable decision. Tr. 8-49. The ALJ concluded that:

After careful consideration of all the evidence, I conclude that the claimant was "disabled" within the meaning of the Social Security Act from November 14, 2011 through June 1, 2013. I also find that the insured status requirements of the Social Security Act were met as of the date disability was established. On June 2, 2013, medical improvement occurred that is related to the ability to work, and the claimant has been able to perform substantial gainful activity from that date through the date of this decision. Thus, the claimant's disability ended on June 2, 2013.

Tr. 13.

         Finklea requested review of the ALJ's decision by the Appeals Council. Tr. 6-7. On April 5, 2016, the Appeals Council denied Finklea' request for review, making the ALJ's June 8, 2015, decision the final decision of the Commissioner. Tr. 1-3.

         II. Evidence

         A. Personal, vocational and educational evidence

         Finklea was born in 1966. Tr. 348, 366, 410. Finklea's past work included event security worker, machine operator, laborer, and shelter monitor. Tr. 113-114, 121-125. Finklea was incarcerated from 1991 until 2003 and from June 2007 until June 2008. Tr. 61-63. Finklea obtained his GED and completed four years of college through Ashland while he was in prison. Tr. 66. Finklea did not receive a degree but obtained certificates for business and office skills. Tr. 66-67, 116. Also while in prison, he received a tutoring certificate and served as a tutor. Tr. 65, 66-67. He also worked on trying to complete a hospitality management program while he was in prison but was released before he was able to complete the program. Tr. 66. After his release from prison in 2008, Finklea stayed in a shelter and he eventually started working there about three day per week. Tr. 63-64. He sat at a check-in desk at the shelter and checked people in. Tr. 64.

         B. Medical evidence[2]

         On March 23, 2010, Finklea presented to St. Vincent Charity's emergency room with complaints of back, hip and thigh pain. Tr. 1302-1308. Finklea reported that the left leg and hip pain was present for about one month and that the pain was constant. Tr. 1306. Finklea was observed to be ambulating well. Tr. 1306. His gait was normal. Tr. 1303. On examination, Finklea exhibited pain at 30 degrees on straight leg raise on the right. Tr. 1303. The emergency room diagnosis was sciatica on the left, acute, and he was discharged home. Tr. 1303.

         On May 14, 2010, Finklea was back at the emergency room. Tr. 1314-1333. He was seen at Euclid Hospital. Tr. 1315. Finklea complained of chest pain and chronic left hip pain that was worse recently without any new injury. Tr. 1318. A left femur x-ray was taken, which showed bullet fragments in the medial aspect of the left thigh, degenerative changes of the left hip joint, and no acute fracture or dislocation. Tr. 1325. An x-ray of the pelvis showed degenerative changes in both hips, greater on the left. Tr. 1325-1326. On examination, Finklea's gait was within normal limits, his extremities were non-tender, he moved all extremities, and there was no pedal edema. Tr. 1319. Finklea was discharged the same day with diagnoses of degenerative joint disease and hypertension. Tr. 1324.

         On October 27, 2010, Finklea saw Dr. Lorraine Stern in the orthopeadics department at MetroHealth Medical Center regarding his hip pain. Tr. 1343. Finklea indicated that he had a history of hip pain. Tr. 1343. His hip pain had been intermittent but was becoming more frequent. Tr. 1343. He reported being able to walk for about 30 minutes without pain and walking with a cane at all times. Tr. 1343. X-rays taken on October 27, 2010, of the pelvis and left hip showed osteoarthritic changes involving the left hip. Tr. 1398. Dr. Stern assessed moderate left hip osteoarthritis and discussed with Finklea the likelihood of needing a total hip replacement in the future but indicated that Finklea was too young at that point to have total hip replacement. Tr. 1344. A referral was provided for physical therapy for range of motion and strengthening and he was provided Naproxyn for pain. Tr. 1344.

         On November 4, 2010, Finklea was seen by MetroHealth Family Practice Clinic as a new patient to establish a relationship. Tr. 1338-1342. One of Finklea's complaints was hip pain with osteoarthritic changes. Tr. 1338. Other medical conditions noted were mild persistent asthma and hypertension, NOS. Tr. 1338. It was noted that Finklea was not compliant with his hypertension medication. Tr. 1341.

         Pursuant to Dr. Stern's referral, on December 1, 2010, Finklea started physical therapy. Tr. 1501-1506. The physical therapist observed decreased hip AROM, decreased hip strength, reduced right lower extremity flexibility, an altered gait pattern, and positive findings related to osteoarthritis diagnosis of the left hip. Tr. 1505. The physical therapist recommended physical therapy for six visits. Tr. 1505. During his third physical therapy visit on December 27, 2010, Finklea reported that his hip pain was a lot better. Tr. 1472. He tolerated the exercises with no complaints of pain. Tr. 1473. Manual therapy helped reduced Finklea's left hip pain to a 0/10. Tr. 1473. Finklea's blood pressure was okay at the start of the physical therapy session but, by the middle of the session, Finklea's blood pressure had risen above an appropriate range and exercise was stopped. Tr. 1473.

         On March 15, 2011, a new course of physical therapy was started. Tr. 1458. Prior physical therapy treatment had failed due to Finklea's hypertension. Tr. 1459. The diagnosis was left hip arthritis. Tr. 1458. Finklea complained of low back pain, hip pain, left lower extremity numbness down to the toes, difficulty walking due to pain, and difficulty staying in one position for an extended period of time. Tr. 1459. His main complaint was his walking endurance, which was limited to one city block. Tr. 1459. The physical therapist recommended 10 physical therapy visits. Tr. 1461.

         During a March 31, 2011, visit with his primary care physician for follow up regarding his hypertension, Finklea reported that he was not taking his medication regularly. Tr. 1442. He just took his medication when he felt like it. Tr. 1442. After a number of denials, Finklea admitted that he was using cocaine almost two times each week. Tr. 1442. Following his visit with his primary care physician on March 31, 2011, Finklea attended his second physical therapy session. Tr. 1447. He reported 0/10 pain. Tr. 1447. Due to hypertension, physical therapy exercises had to be postponed. Tr. 1447. The physical therapist observed that Finklea's hip range of motion was now within normal limits. Tr. 1447. FABER position was still limited. Tr. 1447. Finklea's strength had increased to 4/5 in hip flexion and abduction. Tr. 1447. Finklea's doctor cleared Finklea to continue with physical therapy but with limited exertion. Tr. 1447.

         On April 15, 2011, Finklea was seen at the emergency room for left hip pain and right leg numbness. Tr. 1430-1438. Finklea was diagnosed with acute chronic left hip pain and advised to follow up with the orthopedic clinic. Tr. 1437. On April 20, 2011, Finklea followed up with the orthopedic department and saw Dr. Jonathan E. Belding, M.D. Tr. 1428-1429. He was last seen by the orthopedic department for his hip pain in October 2010. Tr. 1428. Finklea continued to report that he was walking with a cane at all times. Tr. 1428. He indicated he could only walk for about 30 minutes without pain. Tr. 1428. Dr. Belding discussed the likelihood of needing total hip replacement in the future but again advised Finklea that he was too young to have joint replacement. Tr. 1428. Dr. Belding discussed and Finklea was interested in receiving a joint injection. Tr. 1429. Considering Finklea's young age, conservative management of his hip osteoarthritis was recommended. Tr. 1429.

         Following an injection, on June 20, 2011, Finklea saw Dr. Jonathan B. Macknin, M.D., of the orthopedic department for follow up. Tr. 1573. Finklea reported relief from his hip symptoms for about a month and a half, indicating that his hip pain was somewhat less than it was prior to the injection. Tr. 1573. Also, he was not using his cane and overall reported ambulating better. Tr. 1573. On September 19, 2011, Finklea returned to the orthopedic department reporting that his pain had returned to baseline. Tr. 1577. He reported stiffness and increased pain after activity. Tr. 1577. He had started to use his cane again for ambulation in the community. Tr. 1577. It was recommended that another injection be considered since Finklea had obtained adequate pain relief previously. Tr. 1577. Also NSAIDs as prescribed by his primary care physician were recommended. Tr. 1577.

         On September 30, 2011, another steroid injection was administered in Finklea's left hip. Tr. 1580. During a November 8, 2011, primary care visit, Finklea reported that that the injection he had received a few weeks earlier had not helped. Tr. 1583. He indicated that his pain had been getting worse in the prior few weeks, indicating that his pain was constant and he rated it as 10/10. Tr. 1583. He had stopped taking Naprosyn, stating it did not work. Tr. 1583. He was using a cane while walking. Tr. 1583. On examination, both hips appeared grossly normal. Tr. 1584. Finklea's left hip was non-tender to palpation. Tr. 1584. No erythema or swelling was noted. Tr. 1584. There was limited active movement, which according to Finklea was due to pain. Tr. 1584. Finklea exhibited normal passive range of motion; strength was 5/5; and there was normal tone and reflexes. Tr. 1584. It was recommended that Finklea return to orthopedics for his hip. Tr. 1584. A few Percocet pills were provided to Finklea pending his orthopedic visit. Tr. 1584.

         On November 14, 2011, Finklea was seen again by the orthopedic department. Tr. 1597-1598. An x-ray was taken of the left hip showing “[p]rogressive degenerative arthritic change involving left hip. There is a superimposed acute fracture involving the superior lateral aspect of the acetabulum.” Tr. 1599.

         In July 17, 2012, Finklea met with the orthopaedic department to discuss total left hip replacement surgery, indicating he had been approved for Medicaid and was interested in proceeding with the surgery. Tr. 1800. On July 24, 2012, Finklea's doctors reviewed his left hip x-rays and agreed to proceed with left hip replacement. Tr. 1797, 1799. Total hip replacement surgery was originally scheduled for August 31, 2012, but the surgery had to be cancelled because Finklea's blood pressure was elevated. Tr. 1773, 1781. Ultimately, on November 23, 2012, Finklea underwent left total hip replacement surgery. Tr. 2268-2273. From November 26, 2012, through December 5, 2012, Finklea was in a rehabilitation facility. Tr. 2300-2301. At discharge, Finklea's condition had improved and he was ambulatory with use of a walker. Tr. 2406. Finklea had physical therapy and occupational therapy appointments and was instructed to follow up with his primary care physician. Tr. 2406.

         On August 7, 2013, Finklea was seen in the emergency room following a fall that occurred while he was carrying things down stairs. Tr. 2415-2417. Finklea strained his back. Tr. 2416. There was concern that Finklea's fall might have caused injury or damage to his hip replacement hardware but x-rays were taken of the hip and pelvis and there were no new injuries. Tr. 2416, 2423-2424.

         On August 22, 2013, Finklea was seen at his primary care physician's office with complaints of left hip pain that he had been having for two days. Tr. 2450. Finklea noted that the pain was sudden and occurred while he was loading stuff into his truck. Tr. 2450. Finklea received a Toradol injection and an x-ray was taken. Tr. 2452. No acute fracture was shown on the x-ray. Tr. 2451, 2458. On August 17, 2013, Finklea returned to orthopedics. Tr. 2461. He reported that he had fallen on his left hip about two weeks prior and injured it again a week after that while lifting heavy objects into a truck. Tr. 2461. Finklea had been taking Percocet with good relief but had not tried anti-inflammatories. Tr. 2461. The assessment was left hip abductor strain. Tr. 2461. There were no implant issues observed. Tr. 2461. Activity modification was recommended along with use of heat/ice and NSAIDs. Tr. 2461. Finklea was advised to follow up in one year for routine total hip replacement follow up. Tr. 2461. During a September 17, 2013, follow-up visit with his primary care physician, Finklea complained of pain in his left hip but noted that his pain was slightly improved and he reported being able to ambulate. Tr. 2466. Diagnoses from the September 17 visit were hip disease; hypertension, NOS; difficultly walking; and blurry vision. Tr. 2470.

         In April 2014, Finklea was referred for a nutrition assessment to treat his obesity. Tr. 2647. During the April 2014, assessment, Finklea reported working part-time as a repairman. Tr. 2649. Finklea indicated he wanted to start some form of exercise. Tr. 2649. He indicated he had an outdoor bike and wanted to do push-ups. Tr. 2649. He stated that, because of his hip surgery, he could not walk as much as he wanted. Tr. 2649. During a May 21, 2014, visit regarding his nutrition, Finklea reported that he had exercised once by riding his bike. Tr. 2666. He reported being sore after riding his bike for 2-3 hours so he did not try it again. Tr. 2666. The nutritionist recommended that Finklea try riding his bike 30 minutes, 5 times per week, if okay with his doctor, and slowly work up to doing more to avoid pain. Tr. 2666.

         May 24, 2015, x-rays of the hip and pelvis showed normal position and alignment and appearance of the left total hip prosthesis; a healed fracture of the superior left acetabulum with a small bony density in adjacent soft tissues; the heterotopic bone along the greater trochanters was unchanged; and the right hip and sacroiliac joints appeared normal bilaterally. Tr. 2672.

         C. Testimonial evidence

         1. Plaintiff

         Finklea testified at and was represented at both the October 17, 2012, hearing and the April 9, 2015, hearing. Tr. 58-93 (10/17/12 hearing); Tr. 114-125 (4/9/15 hearing).

         October 17, 2012, hearing testimony

         Finklea indicated that the main reason he could not work was because of his hip. Tr. 78. Finklea explained that he had been shot twice in the past. Tr. 59. He was shot once in the right leg in 2000 and he was also shot in his left leg. Tr. 59. Finklea took the bullet out of his right leg himself but the bullet remained lodged in his left leg. Tr. 59-60. The lodged bullet in Finklea's left leg continued to cause him pain in that leg. Tr. 60. Finklea also has pain in his hip due to degenerative changes and a fracture. Tr. 60. Finklea stated that he had to leave the shelter monitoring job because he could barely walk and it hurt to sit. Tr. 73, 84. He also noted, however, that the shelter monitoring job was seasonal - just during the winter. Tr. 84. One doctor told him the pain was caused by his sciatic nerve but another doctor informed him that his back pain was from his hip. Tr. 73.

         Finklea indicated that walking without a cane was really difficult and hurt a lot. Tr. 83. He reported that sometimes his hip will give out on him causing him to fall. Tr. 83. He indicated he was able to walk around his house without his cane but not outside. Tr. 84. Finklea explained that sitting hurt him in his hip and lying down hurt as well. Tr. 84-85.

         Finklea had been scheduled to have hip replacement surgery in September 2012 but the surgery had to be cancelled because his blood pressure was too high. Tr. 86. Finklea tried injections in his hip which gave him some relief but the amount of relief he received from the injections decreased with each subsequent injection. Tr. 86-87. For example, he had three injections and, with the first injection, he had relief for about two months; with the second injection, he had relief for about a month; and with the third injection, he had relief for about a week and a half. Tr. 87. Finklea stated that his pain became very severe around 2010, indicating the pain just started getting worse and worse and he had to go back and forth to the hospital to try to figure out what was wrong. Tr. 90-91.

         April 9, 2015, hearing testimony

         At the April 9, 2015, hearing, Finklea was not using a cane or walker. Tr. 114-115. Finklea reported that he had stopped using cocaine about five years prior. Tr. 116. Finklea was using a CPAP machine and he was using Albuterol and Symbicort for his lungs. Tr. 116-117. Finklea used a rescue inhaler 3-4 times per day. Tr. 117. He was 5'10” tall and weighed 299 pounds. Tr. 116. Finklea indicated that, since his hip replacement surgery, his hip and back still hurt if he walked a certain amount of time, indicating that he could walk about three blocks, two or three times, and then he has to use a cane and/or rest. Tr. 116. Regarding how he felt in 2010, Finklea stated that he used a cane and could not do much of anything. Tr. 118. While in the shelter he was staying at, he would walk to the kitchen to eat and then back to his bunk and sit in front of the television. Tr. 118. He was unable to get into a stand-up shower and he had a difficult time dressing himself. Tr. 119.

         2. Medical Expert

         At the April 9, 2015, hearing, the ALJ called Arthur Brovender, M.D., an orthopaedic specialist, to testify as a medical expert. Tr. 109-112, 316-317, 320-323. Dr. Brovender testified that the record reflected that Finklea had osteoarthritis of the left hip, identifying an October 27, 2011, x-ray which showed osteoarthritis of the left hip. Tr. 109. Dr. Brovender noted that Finklea was 270 pounds and used a cane. Tr. 109. He identified a November 14, 2011, x-ray which showed osteoarthritis of the left hip with a fracture and indicated that Finklea had left hip replacement surgery, citing records showing the left hip replacement surgery occurred on November 23, 2012. Tr. 2268-2272. Initially Dr. Brovender indicated that Finklea equaled a listing from January 14, 2011 until June 1, 2013, but clarified that the listing level impairment started on November 14, 2011, which was when there was evidence of fracture in the left hip. Tr. 110-111. Finklea's counsel questioned Dr. Brovender about the start date of the listing level impairment, pointing out evidence of documented hip pain dating back to October 27, 2010, and use of a cane at all times to walk; and evidence of left hip osteoarthritis with an indication that Finklea would likely need hip replacement. Tr. 110-111 (citing Exhibit 3F, pp. 10-11 (Tr. 1343-1344)). Dr. Brovender responded, “Okay, That's the key word, likely. He didn't need it at that point. He needed it at the date . . . when he had a fracture . . . 11/14/2011.” Tr. 111.

         3. Vocational Experts

         Vocational Expert Thomas Nimberger (“VE Nimberger”) testified at the October 17, 2012, hearing. Tr. 93-104. Vocational Expert Gail Klier (“VE Klier”) testified at the April 9, 2015, hearing. Tr. 112-114, 125-131.

         During the April 9, 2015, hearing, VE Klier described Finklea's past work as an event security worker, machine operator, laborer, and shelter monitor. Tr. 113-114, 121-125. The VE indicated that the event security worker position was titled in the DOT as security guard and it was classified as a light, semi-skilled job. Tr. 113, 121-122. The machine operator position was titled in the DOT as machine operator general and it was classified as a medium, semi-skilled job, which Finklea performed at the heavy level. Tr. 113-114, 122-124. The laborer position was titled in the DOT as general laborer and it was classified as a heavy, unskilled job. Tr. 114, 124-125. Lastly, Finklea's shelter monitor position was classified as a medium, semi-skilled position, which Finklea performed at the light level. Tr. 114.

         The ALJ then asked the VE two hypothetical questions. Tr. 125-130. In the first hypothetical, the ALJ asked the VE to assume an individual who can lift /carry 20 pounds occasionally and 10 pounds frequently; stand and walk 6 out of 8 hours; sit 6 out of 8 hours; would require a 10 second sit/stand option every 30 minutes without being off task; occasionally use a ramp or stairs but never use a ladder, rope or scaffold; occasionally balance, stoop, kneel, crouch, or crawl; constantly use his hands for reaching, handling, fingering, and feeling; visual capabilities and communication skills are constant; should avoid high concentrations of heat, cold, humidity, smoke, fumes, dust, and pollutants; should avoid entirely dangerous machinery and unprotected heights; can perform simple, routine tasks and tasks that would take more than 3 months but up to 6 months to learn; and tasks should be low stress, meaning no high production quotas, no piece rate work, and no work involving arbitration, confrontation, negotiation, supervision, or commercial driving. Tr. 126. The VE indicated that all past work, with the exception of the shelter monitor job, would be excluded based on the first hypothetical. Tr. 127. The VE indicated that there would be jobs in significant ...


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